Gintaras Kryževičius, the petitioner, who submitted a petition requesting the construction of the provisions of the ruling of the Constitutional Court of the Republic of Lithuania of 21 December 1999, and Dalia Asta Mikelėnienė, adviser to the President of the Supreme Court of Lithuania, the representative of the petitioner

The Constitutional Court of the Republic of Lithuania, pursuant to Article 61 of the Law on the Constitutional Court of the Republic of Lithuania, at the Court’s public hearing, on 12 February 2014, considered the petition of Gintaras Kryževičius, President of the Supreme Court of Lithuania, requesting the construction of certain provisions of the Ruling of the Constitutional Court of the Republic of Lithuania “On the compliance of Articles 14, 251, 26, 30, 33, 34, 36, 40, 51, 56, 58, 59, 66, 69, 691, and 73 of the Republic of Lithuania’s Law on Courts with the Constitution of the Republic of Lithuania” of 21 December 1999.

The Constitutional Court

has established:

I

In constitutional justice case No. 16/98 of 21 December 1999, the Constitutional Court adopted the Ruling “On the compliance of Articles 14, 251, 26, 30, 33, 34, 36, 40, 51, 56, 58, 59, 66, 69, 691, and 73 of the Republic of Lithuania’s Law on Courts with the Constitution of the Republic of Lithuania” (Official Gazette Valstybės žinios, 1999, No. 109-3192; hereinafter referred to as the Constitutional Court’s ruling of 21 December 1999).

Gintaras Kryževičius, President of the Supreme Court of Lithuania, the petitioner, requests the construction of whether the provisions “<...> the system of the guarantees of the independence of the judge and courts does not create any preconditions on the grounds of which a judge could evade the proper fulfilment of their duties, investigate cases in a negligent manner <...>. Judges must protect the honour and prestige of their profession. Therefore, the system of self-regulation and self-government of the judiciary must ensure that judges perform their duties properly and that every unlawful or unethical behaviour of a judge be properly assessed” of Item 7 of Section I of the reasoning part of the Constitutional Court’s ruling of 21 December 1999, if construed in conjunction with other official constitutional doctrinal provisions, mean that:

– “the constitutional principle of the independence of judges and courts, which also implies a prohibition against the interference with the activities of a court or judge, denies altogether (per se) the possibility of imposing disciplinary liability on a judge for any, including evident, gross misconduct in office and negligence in the area of jurisdictional activity that have been detected and corrected under the procedure of the procedural review of decisions, as well as for any jurisdictional activity of a judge that, under procedural laws, is the object of procedural review”;

– “errors made by judges in the construction and/or application of law, the possibility of correcting which is provided for in procedural laws, and, purportedly, by means of which, due to this fact, the interests of the administration of justice are not harmed, could not, only due to this fact, be recognised as a clearly negligent performance of the duty of the judge or evasion to perform it without a justifiable reason and assessed as behaviour that discredits the name of the judge”;

– “the content of the constitutional concept ‘behaviour that discredits the name of the judge’ also includes cases when obviously negligent procedural and/or other breaches in the administration of justice, as well as errors that are incompatible with the requirement for high professionalism and for high professional qualification, made by judges in specific cases, are detected under the procedures of the administration of courts and the assessment of the activities of judges and/or under the instance procedure”.

II

At the Constitutional Court’s hearing, Gintaras Kryževičius, President of the Supreme Court of Lithuania, the petitioner, explained the reasons which prompted him to request the construction of the aforementioned provisions of the Constitutional Court’s ruling of 21 December 1999 and answered the questions of the justices of the Constitutional Court, as well as submitted additional material.

The Constitutional Court

holds that:

I

The purpose of the institute of the construction of the rulings and other final acts of the Constitutional Court is to disclose the content and meaning of the corresponding provisions of a ruling or another final act of the Constitutional Court more broadly and in more detail, if it is necessary, in order to ensure proper execution of that ruling or another final act of the Constitutional Court so that the said ruling or another final act of the Constitutional Court would be followed (inter alia, the Constitutional Court’s decisions of 22 December 2010, 5 September 2011, and 29 November 2012).

Under Paragraph 3 of Article 61 of the Law on the Constitutional Court, the Constitutional Court must construe its ruling without changing its content. The Constitutional Court has held on more than one occasion that the said provision, among other things, means that, while construing its ruling, the Constitutional Court may not construe the content of the ruling in such a way that the meaning of its provisions, inter alia, the notional entirety of the elements constituting the content of the ruling, and the arguments and reasons upon which that ruling of the Constitutional Court is based would be changed. A ruling of the Constitutional Court is integral, and all its constituent parts are interrelated; the operative (resolving) part of a ruling is based upon the arguments of the reasoning part; while construing its ruling, the Constitutional Court is bound by the content of both the operative part and reasoning part of its ruling.

It should also be noted that the uniformity and continuity of the official constitutional doctrine imply the necessity to construe each provision of a ruling or another final act of the Constitutional Court in the light of the entire official constitutional doctrinal context as well as of other provisions (both explicit and implicit) of the Constitution that are related to the provision (provisions) of the Constitution in the course of the construction of which the relevant provision of the official constitutional doctrine was formulated in a certain ruling or another final act of the Constitutional Court. As the Constitutional Court has held on more than one occasion, no official constitutional doctrinal provision of a ruling or another final act of the Constitutional Court may be construed in isolation, by ignoring its meaning and systemic links with the other official constitutional doctrinal provisions set forth in the relevant ruling or another final act of the Constitutional Court, or in other Constitutional Court’s acts, as well as with other provisions (explicit and implicit) of the Constitution (inter alia, the Constitutional Court’s decisions of 6 December 2007, 28 October 2009, and 13 March 2013).

II

The President of the Supreme Court of Lithuania, the petitioner, requests the construction of the provisions of Item 7 of Section I of the reasoning part of the Constitutional Court’s ruling of 21 December 1999, which are set forth in the eight paragraph of the said item:

“Alongside, the Constitutional Court notes that the system of the guarantees of the independence of the judge and courts does not create any preconditions on the grounds of which a judge could evade the proper fulfilment of their duties, investigate cases in a negligent manner, act unethically with persons taking part in the case and violate human rights and dignity. Judges must protect the honour and prestige of their profession. Therefore, the system of self-regulation and self-government of the judiciary must ensure that judges perform their duties properly and that every unlawful or unethical behaviour of a judge be properly assessed.”

The provisions, the construction of which is requested by the petitioner, of the Constitutional Court’s ruling of 21 December 1999 are a constituent part of Item of 7 Section I (in which the constitutional principle of the independence of judges and courts is construed as well as the system of the guarantees of the independence of judges and courts is disclosed) of the reasoning part.

It has been mentioned that, while referring to these provisions of the Constitutional Court’s ruling of 21 December 1999, the petitioner requests the construction of whether:

– “the constitutional principle of the independence of judges and courts, which also implies a prohibition against the interference with the activities of a court or judge, denies altogether (per se) the possibility of imposing disciplinary liability on a judge for any, including evident, gross misconduct in office and negligence in the area of jurisdictional activity that have been detected and corrected under the procedure of the procedural review of decisions, as well as for any jurisdictional activity of a judge that, under procedural laws, is the object of procedural review”;

– “errors made by judges in the construction and/or application of law, the possibility of correcting which is provided for in procedural laws, and, purportedly, by means of which, due to this fact, the interests of the administration of justice are not harmed, could not, only due to this fact, be recognised as a clearly negligent performance of the duty of the judge or evasion to perform it without a justifiable reason and assessed as behaviour that discredits the name of the judge”;

– “the content of the constitutional concept ‘behaviour that discredits the name of the judge’ also includes cases when obviously negligent procedural and/or other breaches in the administration of justice, as well as errors that are incompatible with the requirement for high professionalism and for high professional qualification, made by judges in specific cases, are detected under the procedures of the administration of courts and the assessment of the activities of judges and/or under the instance procedure”.

Thus, the petitioner seeks the elucidation of certain aspects of the constitutional principle of the independence of judges and courts, namely, the possibility of imposing disciplinary liability on a judge for decisions in which errors have been made in the construction and/or application of law and which have been (could have been) altered or rescinded later under the procedure of procedural review if these decisions are the consequence of an obviously negligent performance of the duties of a judge, and also the elucidation of the content of the notion “behaviour that discredits the name of the judge” in the aspect of whether it includes errors that have been made by a judge in the construction and application of law and which, inter alia, are incompatible with the requirement for high professional qualification, and whether it includes the breaches of procedural laws and/or other breaches committed in the administration of justice due to obvious negligence, which have been detected and corrected later under the procedure of procedural review, and also detected while administering courts in the course of the assessment of the activities of judges by the self-government institutions of courts.

It has been mentioned that no official constitutional doctrinal provision of a ruling of the Constitutional Court may be construed in isolation, by ignoring its meaning and systemic links with the other official constitutional doctrinal provisions set forth in the relevant ruling of the Constitutional Court, the construction of the provision of which is requested, as well as that the provisions of the Constitutional Court’s ruling must be construed in the light of the entire official constitutional doctrinal context and of the other provisions (explicit and implicit) of the Constitution that are related to the provision of the Constitution in the course of the construction of which a corresponding official constitutional doctrinal provision was formulated in the relevant Constitutional Court’s ruling.

Thus, the provisions, the construction of which is requested by the petitioner, of Item 7 of Section I of the reasoning part of the Constitutional Court’s ruling of 21 December 1999 should be construed, in the aspect specified by the petitioner, in conjunction with the other provisions of the said ruling, as well as with the official constitutional doctrinal provisions formulated in other Constitutional Court’s rulings.

The provisions, the construction of which is requested by the petitioner, of the Constitutional Court’s ruling of 21 December 1999 are formulated in the course of the construction of Paragraph 2 of Article 109 of the Constitution, which establishes that, while administering justice, the judge and courts shall be independent. The Constitutional Court’s jurisprudence (the Constitutional Court’s rulings of 21 December 1999, 12 February 2001, 12 July 2001, 13 May 2004, 9 May 2006, and other rulings) discloses various aspects of the independence of judges and courts that stem from the Constitution.

4.1. In the Constitutional Court’s jurisprudence, it has been held on more than one occasion that the purpose and constitutional competence of the judiciary is to administer justice; courts have a duty to consider cases in a fair and objective manner as well as to adopt reasoned and substantiated decisions. The function of the administration of justice determines the independence of judges and courts: judges may administer justice only when they are independent.

4.2. The independence of judges and courts is one of the essential principles of a democratic state under the rule of law. This principle, first of all, means the independence of both judges and courts that administer justice. A judge can administer justice only while being independent of the parties to the case, state institutions, officials, political and public associations, natural and legal persons (the Constitutional Court’s rulings of 12 July 2001, 13 May 2004, and 16 January 2006).

4.3. The principle of the independence of judges and courts, which is enshrined in the Constitution, obliges the legislature to establish such guarantees of the independence of judges and courts that would ensure the impartiality of courts in adopting a decision and would not permit to interfere with the activities of judges and courts in administering justice (the Constitutional Court’s ruling of 28 March 2006). In the jurisprudence of the Constitutional Court, it has been held that the independence of judges and courts, as well as their impartiality, may be ensured by means of various measures, inter alia, by establishing, by law, their procedural independence, the organisational independence and self-government of courts, the status of judges, and social (material) guarantees of the judge (the Constitutional Court’s rulings of 21 December 1999, 27 November 2006, and 22 October 2007).

4.4. The assessment of the entirety of the guarantees of the independence of judges and courts makes it possible to assert that the said guarantees are closely interrelated (the Constitutional Court’s ruling of 6 December 1995). In general, the independence of judges and courts cannot be assessed according to any single, even very significant, feature. Therefore, it is universally recognised that in case any of the guarantees of the independence of judges and courts is violated, the administration of justice might be compromised, there would be a risk that neither human rights and freedoms will be ensured nor the supremacy of law will be guaranteed (the Constitutional Court’s ruling of 21 December 1999).

4.5. The independence of judges and courts is not an end in itself—it is a necessary condition for the protection of human rights and freedoms; the fact that independence is not a privilege but one of the most important duties of judges and courts, which stems from the human right guaranteed in the Constitution to have an impartial arbiter of a dispute and which is a necessary condition for an impartial and fair consideration of a case, is the most important criterion which must be followed when assessing the independence of judges and courts (inter alia, the Constitutional Court’s rulings of 21 December 1999, 9 May 2006, and 22 October 2007). Conditions for preventing anyone’s interference with the actions of a judge or court when they render an impartial and fair decision must be created on the basis of the entirety of the guarantees entrenching the independence of judges and courts, which is established in the Constitution and laws (the Constitutional Court’s rulings of 6 December 1995 and 28 March 2006).

The procedural independence of the judge, which includes, inter alia, the autonomy of the court in deciding all issues related to a case under consideration, is one of the aspects of the principle of the independence of judges and courts—only a court itself decides on how it should consider a case. The Constitutional Court has held that a judge is not bound by the obligation to account for the cases considered by them to any state institution or officials (the Constitutional Court’s ruling of 21 December 1999). The procedural independence of the judge is a necessary condition for an impartial and fair consideration of a case (the Constitutional Court’s ruling of 21 December 1999).

The decisions of a judge may be reviewed and altered or rescinded only by a court of higher instance under the procedure provided for in procedural laws (the Constitutional Court’s ruling of 21 December 1999). The Constitutional Court has held that the purpose of the instance system of courts is to eliminate any possible errors of courts of lower instance, not to permit the administration of injustice and, thus, to protect the rights and legitimate interests of a person and society (the Constitutional Court’s rulings of 16 January 2006, 28 March 2006, 6 December 2012, and 15 November 2013). The purpose of the instance system of courts of general jurisdiction is to create preconditions for courts of higher instance to correct any errors of fact (i.e. of the establishment and assessment of legally significant facts) or those of law (i.e. of the application of law), which could, for some reasons, be made by a court of lower instance, and not to permit the administration of injustice in any civil case, criminal case or case of another category considered by courts of general jurisdiction (the Constitutional Court’s ruling of 28 March 2006). Justice is administered by always leaving an opportunity to correct any possible error (the Constitutional Court’s rulings of 9 December 1998 and 15 November 2013).

The instance system of courts of general jurisdiction, which stems from the Constitution, may not be interpreted as restricting the procedural independence of courts of general jurisdiction of lower instance: courts of general jurisdiction of higher instance (and the judges thereof) may not interfere in the cases considered by courts of general jurisdiction of lower instance, provide them with any orders, either obligatory or in the form of recommendation, on how the cases in question must be decided, etc.; in respect of the Constitution, such orders (whether obligatory or in the form of recommendation) would be assessed as ultra vires functioning of the courts (judges) in question (the Constitutional Court’s rulings of 28 March 2006 and 9 May 2006).

It should be noted that the said provisions of the official constitutional doctrine, which disclose the purpose of the instance system of courts of general jurisdiction and the procedural independence of courts of general jurisdiction, are also applicable mutatis mutandis to specialised courts established under Paragraph 2 of Article 111 of the Constitution.

Under Paragraph 3 of Article 109 of the Constitution, when considering cases, judges shall obey only the law. When administering justice, all judges have equal legal status in the aspect that no different guarantees of the independence of the judge in administering justice (deciding cases) may be established. While administering justice, no judge is, nor may be subordinate to any other judge or to the president of any court (inter alia, of the court where they work as well as of a court of a higher level or instance) (inter alia, the Constitutional Court’s rulings of 27 November 2006, 29 June 2010, and 14 February 2011).

The Constitutional Court has held on more than one occasion that the full role and independence of the judiciary imply its self-regulation and self-governance, which includes, inter alia, the organisation of the work of courts and the activities of the professional corps of judges (the Constitutional Court’s rulings of 21 December 1999 and 9 May 2006).

A special institution of judges, provided for in Paragraph 5 of Article 112 of the Constitution, which advises the President of the Republic on the appointment, promotion, transfer of judges, or their dismissal from office, is an important element of the self-government of the Judiciary as an independent branch of state power. The constitutional powers of the said institution of judges are related to the participation of the judiciary as the branch of state power formed on the professional basis and of certain members of the corps of judges who implement the judicial power and who, under the procedure established by law, are appointed or elected to the said special institution of judges, in adopting decisions on the career of judges (the Constitutional Court’s ruling of 9 May 2006). A special institution of judges provided for in Paragraph 5 of Article 112 of the Constitution is a counterbalance to the President of the Republic as a subject of the executive in the area of the formation of the corps of judges (the Constitutional Court’s rulings of 21 December 1999 and 13 December 2004).

In the jurisprudence of the Constitutional Court, among other things, it has been held that the impossibility, which stems from the Constitution, to dismiss a judge from office without the advice of a special institution of judges provided for by law, which is specified in Paragraph 5 of Article 112 of the Constitution, is a very important guarantee of the independence of judges and courts, one of the means which helps the judges of all courts, with no exception, to protect themselves from the interference of state power and governing institutions, members of the Seimas and other officials, political parties, political and public organisations and other persons with the activities of a judge or a court (the Constitutional Court’s ruling of 9 May 2006).

As it has been noted in the Constitutional Court’s ruling of 9 May 2006, a special institution of judges specified in Paragraph 5 of Article 112 of the Constitution is not the only element of the self-governance of the Judiciary as an independent branch of state power; under the Constitution, the legislature, while paying heed to the constitutional principle of the independence of judges and courts and other provisions of the Constitution, also has the powers to establish, by means of a law, other self-government institutions of the judiciary, to establish the procedure of their formation, powers, etc.; moreover, while seeking to ensure the efficiency of the self-governance of the judiciary and in view of the fact that, under the Constitution, the self-governing judiciary may not be too centralised, certain such other institutions must be formed (first of all, the meeting of judges (or the representatives thereof) without which the self-governance of the Judiciary as a fully-fledged and independent branch of state power is, in general, impossible); while regulating the relations related to the formation of such institutions, the legislature enjoys broad discretion.

The qualification of judges is one of the guarantees that judges will administer justice in a proper manner: only persons with high legal qualification and experience of life may be appointed as judges; this means that judges must meet special professional requirements (the Constitutional Court’s ruling of 21 December 1999 and its decision of 3 July 2013). The appropriate preparedness of judges, the improvement of their knowledge and in-service training are an important precondition for guaranteeing the proper activities of courts (the Constitutional Court’s ruling of 21 December 1999).

Judges must meet very strict ethical and moral requirements, their reputation must be impeccable (the Constitutional Court’s ruling of 27 November 2006 and its decision of 3 July 2013), they must protect the honour and prestige of their profession (the Constitutional Court’s ruling of 21 December 1999). The Constitutional Court has also held that a judge must bear great responsibility for how they administer justice, i.e. perform the obligation established to them in the Constitution (the Constitutional Court’s ruling of 21 December 1999 and its decision of 3 July 2013).

In the context of this decision it should be noted that a special institution of judges, specified in Paragraph 5 of Article 112 of the Constitution, which takes part in the adoption of decisions on the career of judges (which advises the President of the Republic on the appointment, promotion, transfer of judges, or their dismissal from office) and which, as it is noted in the Constitutional Court’s ruling of 9 May 2006, as a result of this, has the powers to assess the qualification of judges, must also assess, in certain aspects, the work of judges done in the consideration of cases—this is an important precondition for guaranteeing the proper activity of courts. However, it needs to be emphasised that the assessment of the work of judges done in the consideration of cases, where such assessment could create preconditions for undermining the independence of judges and courts, would be incompatible with the Constitution, inter alia, Paragraph 2 of Article 109 thereof. The work of judges should be assessed in accordance with pre-established criteria while taking account, inter alia, of the circumstances such as the volume of work of the court in question, the workload of a judge, the complexity and particularity of cases, and the duration and course of court proceedings.

Alongside, it needs to be noted that, in view of the fact that, under the Constitution, the self-governing judiciary may not be too centralised and that the legislature has broad discretion to establish, by means of a law, the system of the self-government institutions of the judiciary, the powers to assess the work of judges done in the consideration of cases as well as the qualification of judges may also be conferred, by means of a law, on a self-government institution of courts other than that provided for in Paragraph 5 of Article 112 of the Constitution.

It has been mentioned that a judge must bear great responsibility for how they administer justice, i.e. perform the obligation established to them in the Constitution, and also that the system of the guarantees of the independence of judges and courts does not create any preconditions on the grounds of which a judge could evade the proper fulfilment of their duties and investigate cases in a negligent manner. Thus, the constitutional principle of the independence of judges and courts is far from meaning that disciplinary liability may not be imposed on a judge who performs their duties in an improper manner (inter alia, considers cases in a negligent manner) or evades performing them without a justifiable reason.

As mentioned before, the system of self-regulation and self-government of the judiciary must ensure that judges perform their duties properly and that every unlawful or unethical behaviour of a judge be properly assessed. However, as it was held in the Constitutional Court’s ruling of 21 December 1999, the application of disciplinary measures to judges must be organised in such a manner that the actual independence of judges would not be violated.

It should be noted that this means, among other things, that, while applying disciplinary liability measures, the balance between the independence and responsibility of judges may not be tipped, the said measures may not create any preconditions for interfering with the activities of judges undertaken in the consideration of cases and the adoption of decisions, nor violate the actual procedural independence of the judge. Disciplinary liability measures may be applied to a judge for their certain conduct by which they commit a misconduct while implementing their powers as a judge (for evasion to perform duties or improper performance of them, inter alia, negligent consideration of cases), also for the conduct of a judge that is not related to the implementation of the powers of the judge. Disciplinary liability measures that are applied to judges, the grounds for, and the conditions of, their application must be established by law. When deciding whether a certain behaviour of a judge is to be recognised as a misconduct for which liability must be imposed, it is necessary to assess all the circumstances related to its commitment.

Under Item 5 of Article 115 of the Constitution, judges shall be dismissed from office according to the procedure established by law when by their behaviour they discredit the name of the judge. Thus, under the Constitution, dismissal from office is the strictest disciplinary liability measure applicable to a judge who by their behaviour discredits the name of the judge.

11.1. The Constitutional Court has held that the Constitution does not expressis verbis establish what types of behaviour of a judge are attributable to those by which the name of the judge is discredited; the formulation “behaviour that discredits the name of the judge” is capacious, it includes not only the conduct of a judge, by which, a judge, while implementing their powers as a judge, has discredited the name of the judge, but also the conduct that has discredited the name of the judge with no relation to the implementation of the powers of the judge; under the Constitution, the legislature as well as the self-government institutions of courts have discretion to establish what types of behaviour of a judge are attributable to those by which the name of the judge is discredited, however, neither laws, nor decisions of the self-government institutions of courts may establish any thorough (exhaustive) list of types of behaviour by which a judge discredits the name of the judge; every time the fact whether the behaviour of a judge is that by which the name of the judge is discredited must be decided after all the circumstances related to the said behaviour and significant to the case are assessed (the Constitutional Court’s rulings of 27 November 2006 and 16 January 2007).

11.2. The behaviour provided for in Item 5 of Article 115 of the Constitution by which the name of the judge is discredited implies not only the establishment (statement) of respective facts of objective nature, but also their assessment (the Constitutional Court’s ruling of 27 November 2006). Thus, in cases when the President of the Republic applies to a special institution of judges provided for by law, which is specified in Paragraph 5 of Article 112 of the Constitution, so that it would give advice, inter alia, on the dismissal of a judge who has discredited the name of the judge by their behaviour from office, the said institution of judges must not only make sure that there has been a certain behaviour (act) of a judge, but also assess whether by this behaviour (act) they have really discredited the name of the judge (the Constitutional Court’s rulings of 9 May 2006 and 27 November 2006).

In the Constitutional Court’s ruling of 21 December 1999, the construction of the provisions of which is requested, as well as in other Constitutional Court’s acts, it is emphasised that the principle of the independence of judges and courts is also established in a large number of international acts: in the Universal Declaration of Human Rights, the Convention for the Protection of Human Rights and Fundamental Freedoms; the Basic Principles on the Independence of the Judiciary endorsed by the General Assembly of the United Nations in its Resolution No. 40/146 of 13 December 1985, Recommendation No. R(94)12 of the Committee of Ministers of the Council of Europe on the independence, efficiency and role of judges of 13 October 1994, the Universal Charter of the Judge of 17 November 1999, etc.

In the Constitutional Court’s acts in which the constitutional principle of the independence of judges and courts is construed, it is also noted that this principle is established in the constitutions of all democratic countries.

In the context of this decision it should be noted that the principle of the independence of judges and courts is also established in Recommendation CM Rec(2010)12 of the Committee of Ministers of the Council of Europe on judges: independence, efficiency and responsibilities of 17 November 2010, in which, inter alia, it is emphasised that the interpretation of the law, assessment of fact or weighing of evidence during court proceedings cannot give rise, inter alia, to disciplinary liability, except in cases of malice and gross negligence (Item 66); disciplinary proceedings may follow where a judge fails to carry out their duties in an efficient and proper manner (Item 69); disciplinary liability measures must be proportionate (Item 69); judges cannot be personally accountable where their decision has been overruled or modified on appeal (Item 70).

III

It has been mentioned that the President of the Supreme Court of Lithuania, the petitioner, seeks the elucidation of whether the provisions of the Constitutional Court’s ruling of 21 December 1999, which are referred to by him, mean that, under the constitutional principle of the independence of judges and courts, it is not permitted to impose any disciplinary liability on a judge for both evident and gross as well as for all other misconduct in office and negligence in the area of jurisdictional activity that were detected and later corrected under the procedure of the procedural review of decisions or that have not been detected but are an object of procedural review, thus, for the decisions adopted while administering justice that have been (can be) altered and rescinded by a court of higher instance, also, whether the content of the constitutional concept “behaviour that discredits the name of the judge” includes errors which are made by judges in the construction and application of law and which, inter alia, are incompatible with the requirement for high professional qualification, and it includes the breaches of procedural laws and/or other breaches committed in the administration of justice due to obvious negligence, which have been detected and corrected under the procedure of procedural review, and also detected while administering courts and while the self-government institutions of courts assess the activities of judges.

While construing the provisions of the Constitutional Court’s ruling of 21 December 1999 in the aspects specified by the petitioner, it should be noted that, as mentioned before, the constitutional principle of the independence of judges and courts does not mean that disciplinary liability may not be imposed on a judge who performs their duties in an inappropriate manner (inter alia, considers cases in a negligent manner) or evades performing them without a justifiable reason; under Paragraph 5 of Article 115 of the Constitution, the strictest disciplinary liability measure—dismissal from office—is applicable to a judge who discredits the name of the judge by their behaviour; the formulation “behaviour that discredits the name of the judge” is capacious, it includes, inter alia, the conduct of a judge by which a judge has discredited the name of the judge while implementing their powers as a judge; under the Constitution, the legislature as well as the self-government institutions of courts have discretion to establish what types of behaviour of a judge are attributable to those by which the name of the judge is discredited, however, neither laws, nor decisions of the self-government institutions of courts may establish any thorough (exhaustive) list of types of behaviour by which a judge discredits the name of the judge; every time the fact whether the behaviour of a judge is that by which the name of the judge is discredited must be decided after all the circumstances related to the said behaviour and significant to the case are assessed.

In this context, it should be noted that, while having discretion, under the Constitution, to establish which types of behaviour of a judge are attributable to those by which the name of the judge is discredited, the legislature established, in Paragraph 3 (wording of 3 July 2008) of Article 83 of the Republic of Lithuania’s Law on Courts (wording of 1 May 2002), that behaviour that discredits the name of the judge is the one that is incompatible with the honour of the judge and inconsistent with the requirements of the Code of Ethics of Judges as well as by which the name of the judge is discredited and the authority of the court is undermined; behaviour that discredits the name of the judge is recognised as any misconduct in office, i.e. obviously negligent performance of a specific duty of a judge or failure to perform it without a justifiable reason.

It has been mentioned that the procedural independence and autonomy of the judge in deciding all issues related to a case under consideration is a necessary condition for impartial and fair consideration of a case; only a court itself decides on how it should consider a case; a judge is not bound by the obligation to account for the cases considered by them to any state institution or officials; while administering justice, no judge is, nor may be subordinate to any other judge or to the president of any court (inter alia, of the court where they work as well as of a court of a higher level or instance); the decisions of a judge may be reviewed and altered or rescinded only by a court of higher instance under the procedure provided for in procedural laws; the purpose of the instance system of courts is to eliminate any errors of fact (i.e. of the establishment and assessment of legally significant facts) or those of law (i.e. of the application of law) made by courts of lower instance, and not to permit the administration of injustice; justice is administered by always leaving an opportunity to correct any possible error.

3.1. Thus, while fulfilling their constitutional obligation to administer justice and adopt reasoned and substantiated decisions, a judge considers cases independently, decides all issues related to a case under consideration at their own discretion, by following law, relying on a comprehensive and objective assessment of facts, their knowledge, internal conviction and ethical requirements. A judge is not bound by the obligation to account for the consideration of cases and the validity of the decisions adopted; the arguments and reasoning of a judge are set forth in the decisions adopted.

3.2. In the context of the questions raised by the petitioner, it should be emphasised that the mere fact that a court of higher instance, having reviewed, under the procedure provided for in procedural laws, a decision adopted by a court of lower instance, altered it or rescinded it due to the errors in the construction and/or application of law and the breaches of procedural laws that were made while adopting it, cannot serve as a basis for imposing disciplinary liability on a judge who adopted that decision. Judges of courts of higher instance who consider cases concerning decisions adopted by courts of lower instance also rely on their knowledge and internal conviction, therefore, the adoption of another decision may also be determined by a different perception, assessment of facts and/or construction of law. The fact that the errors in the construction and/or application of law and the breaches of procedural laws that were made, while adopting a decision, by a judge of a court of lower instance who considered a case in an independent and impartial manner are corrected by a court of higher instance, first of all, shows that the instance system of courts functions according to its intended purpose and not the fact that a judge who adopted a decision that has been altered or rescinded performed their duties in a negligent manner or lacked necessary professional qualification. When a court of higher instance reviews and alters or rescinds a decision adopted by a court of lower instance, the qualification or activities (work) of a judge (performed in the consideration of cases) who has adopted it is not assessed; (a) self-government institution(s) of courts, which has (have) the respective powers, assesses (assess) this and applies (apply) disciplinary liability measures under the procedure established by law.

Thus, a decision adopted by a judge, even if altered or rescinded by a court of higher instance due to the errors in the construction and/or application of law and the breaches of procedural laws that were made while adopting it, cannot serve as a basis for initiating the procedure for disciplinary liability, for recognising that by their behaviour a judge discredited the name of the judge and, under Item 5 of Article 115 of the Constitution, for dismissing them from office. A possibility of applying any measures with negative effects to judges for specific decisions adopted by them (for the assessment of facts and the construction of law set out therein) would deny the essence of the instance system of courts, would create preconditions for undermining the procedural autonomy of the judge in deciding all issues related to a case under consideration and interfering with the actions of a judge or court in administering justice, thus, it would violate the constitutional principle of the independence of judges and courts.

It has been mentioned that the system of self-regulation and self-government of the judiciary must ensure that judges perform their duties properly and that every unlawful or unethical behaviour of a judge be properly assessed; however, the application of disciplinary measures to judges must be organised in such a manner that the actual independence of judges would not be undermined.

4.1. In the context of the questions raised by the petitioner it should be noted that the constitutional principle of the independence of judges and courts does not deny the possibility of imposing disciplinary liability on a judge for evasion to perform duties without a justifiable reason and for inappropriate performance of the duties assigned (inter alia, for negligence in considering cases). (A) self-government institution(s) of courts, which has (have) the powers to assess the activities of judges (i.e. how a judge, while administering justice, performs their duties), examine misconduct committed by judges and impose disciplinary sanctions on them, must, on a case-by-case basis, assess all the circumstances related to the performance of the duties of a judge. If a judge, when considering cases, performs their duties in a negligent manner (inter alia, considers cases in haste and superficially, or, on the contrary, unjustifiably slowly, commits evident breaches of the requirements provided for in procedural laws and does not go into the substance of the material of a case, and considers cases in a slipshod manner), disciplinary liability should be imposed on them for the misconduct committed.

4.2. However, it needs to be emphasised that (a) self-government institution(s) of courts, which has (have) the powers to assess the activities of judges and apply disciplinary liability measures, may not decide to apply such measures for the errors in the construction and/or application of law and the breaches of procedural laws that were made by a judge while adopting a decision and were detected as well as corrected later by a court of higher instance, also, where such breaches were detected by means excluding the review of an adopted decision by a court of higher instance, but the aforementioned institution(s) is (are) empowered to apply the said measures when it (they) administer courts and carries (carry) out the assessment of the activities of judges. If (a) self-government institution(s) of courts was (were) given such powers, i.e. the possibility of imposing disciplinary liability on judges for a specific decision adopted was provided for, this would mean that this (these) institution(s) is (are) entrusted with carrying out the control of the decisions of judges and assessing their content, thus, the essence of the instance system of courts would be denied, preconditions for interfering with the activities of a judge in administering justice would be created and the constitutional principle of the independence of judges and courts would be violated.

In the context of the questions raised by the petitioner it should also be noted that if the decisions of a judge of a court of lower instance are altered or rescinded by courts of higher instance very often, gross and evident errors in the construction and/or application of law, as well as gross and evident breaches of procedural laws, are repeatedly made therein, this may mean that, while administering justice, a judge performs their duties in an improper manner (inter alia, considers cases in a negligent manner, does not go into the substance of the material of a case) and/or that a judge does not meet the requirements of professional qualification imposed on them. Improper and negligent conduct of a judge that reveals evident lack of competence and results in constant adoption of such decisions in which errors in the construction and/or application of law as well as the breaches of procedural laws are made is incompatible with the requirements imposed on a judge, therefore, serves as a basis for applying disciplinary liability measures to a judge, inter alia, for recognising that by their behaviour a judge discredits the name of the judge. It should also be noted that if recurrent gross and evident errors in the construction and/or application of law as well as recurrent gross and evident breaches of procedural laws are detected not after a court of higher instance reviews the decisions adopted by a judge but while administering courts or while (a) self-government institution(s) of courts assess(es) the activities of a judge, this also serves as a basis for assessing as appropriate the conduct of a judge and applying disciplinary liability measures to them, inter alia, for recognising that a judge discredits the name of the judge and, under Paragraph 5 of Article 115 of the Constitution, for dismissing them from office.

After all significant circumstances are assessed, every time it must be decided whether the conduct of a judge in making the errors and breaches that have been detected is the one that discredits the name of the judge. The constitutional principle of the independence of judges and courts implies the fact that the system of self-regulation and self-government of the judiciary must function in such a manner that preconditions for dismissing a judge who discredits the name of the judge from office would be created.

In the light of the foregoing, the conclusion should be drawn that the provisions “<...> the system of the guarantees of the independence of the judge and courts does not create any preconditions on the grounds of which a judge could evade the proper fulfilment of their duties, investigate cases in a negligent manner <...>. Judges must protect the honour and prestige of their profession. Therefore, the system of self-regulation and self-government of the judiciary must ensure that judges perform their duties properly and that every unlawful or unethical behaviour of a judge be properly assessed” of the eight paragraph of Item 7 of Section I of the reasoning part of the Constitutional Court’s ruling of 21 December 1999, inter alia, mean that:

– the constitutional principle of the independence of judges and courts does not deny the possibility of imposing disciplinary liability on judges for evasion to perform duties without a justifiable reason and for inappropriate performance of duties (inter alia, for negligent consideration of cases), however, the mere fact that a court of higher instance, having reviewed, under the procedure provided for in procedural laws, a decision adopted by a judge, altered it or rescinded it due to the errors in the construction and/or application of law or the breaches of procedural laws that were made while adopting it, does not mean that it can serve as a basis for imposing disciplinary liability on a judge and, under Item 5 of Article 115 of the Constitution, for dismissing them from office having recognised that by their behaviour a judge has discredited the name of the judge;

– recurrent gross and evident errors in the construction and/or application of law as well as recurrent gross and evident breaches of procedural laws that were made by a judge while adopting decisions serve as a basis for (a) self-government institution(s) of courts, which has (have) the respective powers, to assess the conduct of a judge as the inappropriate performance of duties (inter alia, negligent consideration of cases) and lack of necessary professional qualification, to impose disciplinary liability on a judge and recognise that by their behaviour a judge discredits the name of the judge; the system of self-regulation and self-government of the judiciary must function in such a manner that preconditions would be created for dismissing a judge who by their behaviour discredits the name of the judge from office.

Conforming to Article 102 of the Constitution of the Republic of Lithuania and Articles 1 and 61 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

decision:

To construe that the provisions “<...> the system of the guarantees of the independence of the judge and courts does not create any preconditions on the grounds of which a judge could evade the proper fulfilment of their duties, investigate cases in a negligent manner <...>. Judges must protect the honour and prestige of their profession. Therefore, the system of self-regulation and self-government of the judiciary must ensure that judges perform their duties properly and that every unlawful or unethical behaviour of a judge be properly assessed” of Item 7 of Section I of the reasoning part of the ruling of the Constitutional Court of the Republic of Lithuania of 21 December 1999 (Official Gazette Valstybės žinios, 1999, No. 109-3192), inter alia, mean that:

– the constitutional principle of the independence of judges and courts does not deny the possibility of imposing disciplinary liability on judges for evasion to perform duties without a justifiable reason and for inappropriate performance of duties (inter alia, for negligent consideration of cases), however, the mere fact that a court of higher instance, having reviewed, under the procedure provided for in procedural laws, a decision adopted by a judge, altered it or rescinded it due to the errors in the construction and/or application of law or the breaches of procedural laws that were made while adopting it, does not mean that it can serve as a basis for imposing disciplinary liability on a judge and, under Item 5 of Article 115 of the Constitution, for dismissing them from office having recognised that by their behaviour a judge has discredited the name of the judge;

– recurrent gross and evident errors in the construction and/or application of law as well as recurrent gross and evident breaches of procedural laws that were made by a judge while adopting decisions serve as a basis for (a) self-government institution(s) of courts, which has (have) the respective powers, to assess the conduct of a judge as the inappropriate performance of duties (inter alia, negligent consideration of cases) and lack of necessary professional qualification, to impose disciplinary liability on a judge and recognise that by their behaviour a judge discredits the name of the judge; the system of self-regulation and self-government of the judiciary must function in such a manner that preconditions would be created for dismissing a judge who by their behaviour discredits the name of the judge from office.

This decision of the Constitutional Court of the Republic of Lithuania is final and not subject to appeal.